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Judgment
The challenge in the present writ petition is to the notification dated 19th January, 2018 whereby appointments by promotion were made to
Higher Judicial Service governed by Madhya Pradesh Higher Judicial Service (Recruitment and Conditions of Service) Rules, 1994 (for short ""the
Rules"").
The case set up is that the Rules provide 50% by promotion from amongst the Civil Judges (Senior Division) on the basis of merit-cumseniority
and passing suitability test; whereas 25% posts are required to be filed up by promotion on the basis of merit through limited competitive
examination from amongst Civil Judges having not less than 5 years qualifying service. The said clause of 25% has to be read as 10% in terms of
the judgment of the Supreme Court in All India Judges'' Association and others vs. Union of India and others, (2010) 15 SCC 170 .
The grievance of the petitioners is that only 10% of the seats can be filled up by limited departmental competitive examination. Thus, only 61
posts could be filled up from amongst the candidates by way of limited competitive examination. It is contended that 78 posts have been filled up
since 2016, therefore, the 11 posts which have been advertised will lead to 89 posts to be filled under Rule 5(1)(b) of the Rules which is contrary
to the judgment of the Hon''ble Supreme Court and the statutory rules. WP-3190-2018
Petitioner No.1 is a suspended Third Additional District and Sessions Judge whereas petitioner No.2 is an Advocate. The petitioners have
pointed out that an advertisement was issued on 22.07.2017 to fill up the 11 posts under Rule 5(1)(b) of the Rules whereas 42 posts were
advertised to be filled up by way of a direct recruitment for which advertisement was published on 16.03.2017. It is contended that total
sanctioned strength of the Higher Judicial Service is 611 and thus only 10% posts are required to be filled up by way of a limited competitive
examination.
A perusal of the notification, subject matter of challenge dated 10.01.2018 published in the M.P. State Government Gazette on 19.01.2018,
five members of Civil Judges (Senior Division) were appointed as Additional District Judges in terms of Rule 5(1)(b) of the Rules. In terms of such
order, the High Court posted such five officials vide circular dated 25.01.2018.
The entire argument of learned counsel for the petitioners is based upon an argument that appointments from amongst the Civil Judges (Senior
Division) in terms of Rule 5(1)(b) of the Rules has been made in excess of the quota made for such candidates. It may also be noticed that none of
the officers whose appointment is said to be against in excess of the quota, have been impleaded in the present writ petition claiming a writ of quo
warranto.
The question as to when a writ of quo warranto can be entertained has been examined by Hon''ble Supreme Court in a judgment reported as
(2004) 3 SCC 349 (Ashok Kumar Pandey vs. State of W.B.) wherein it has been held that the public interest litigation must be real and general
public involved in the litigation and not merely an adventure of a knight errant or WP-3190-2018 poke one''s nose into for a probe. It cannot also
be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity. The relevant
extract of the said judgment is reproduced as under:
When there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, the
said petition is to be thrown out. Before we grapple with the issue involved in the present case, we feel it necessary to consider the issue regarding
public interest aspect. Public Interest Litigation which has now come to occupy an important field in the administration of law should not be
publicity interest litigation"" or ""private interest litigation"" or ""politics interest litigation"" or the latest trend ""paise income litigation"". If not properly
regulated and abuse averted it also becomes a tool in unscrupulous hands to release vendetta and wreck vengeance, as well. There must be real
and genuine public interest involved in the litigation and not merely an adventure of a knight errant or poke one''s nose into for a probe. It cannot
also be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity. Courts
of justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction. A person acting bona fide
and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the Court to wipe out
violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any
oblique consideration. These aspects were highlighted by this Court in Janata Dal vs. H.S. Chowdhary and others, (1992) 4 SCC 305 and Kazi
Lhendup Dorji vs. Central Bureau of Investigation, (1994 Supp (2) SCC 116). A writ petitioner who comes to the Court for relief in public
interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective. See Ramjas
Foundation vs. Union of India, (AIR 1993 SC 852 ) and K.R. Srinivas vs. R.M. Premchand, (1994 (6) SCC 620).
In another judgment reported as (2004) 3 SCC 363 (Dr. B. Singh vs. Union of India and others), the Court held that the judiciary has to be
extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity-seeking is not lurking.
The Court held as under:-
Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be
extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicityseeking is
not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive
brand name of public interest litigation should not be allowed to be used for suspicious products of mischief. It should be aimed at
redressal of genuine public wrong or public injury and not publicity-oriented or founded on personal vendetta. As indicated above,
Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for
personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be
abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge
in the pastime of meddling with judicial process either by force of habit or from improper motives and try to bargain for a good deal
as well to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such
busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.
The Court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information
given by him; and (c) the information being not vague and indefinite. The information should show gravity and seriousness involved.
Court has to strike balance between two conflicting interests; (i) nobody should be allowed to indulge in wild and reckless allegations
besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for
oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely
careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution
to the executive and the legislature. The Court has to act ruthlessly while dealing with imposters and busybodies or meddlesome
interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of
Pro Bono Publico, though they have no interest of the public or even of their own to protect.
Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance
by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good.
(See State of Maharashtra vs. Prabhu, (1994 (2) SCC 481), and Andhra Pradesh State Financial Corporation vs. M/s GAR Re-
Rolling Mills and Anr., (1994) 2 SCC 647). No litigant has a right to unlimited drought on the Court time and public money in order
to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and
frivolous petitions. (See Buddhi Kota Subbarao (Dr) v. K. Parasaran (1996) 5 SCC 530. Today people rush to Courts to file cases
in profusion under this attractive name of public interest. Self styled saviours who have no face or ground in the midst of public at
large, of late, try to use such litigations to keep themselves busy and their names in circulation, despite having really become defunct in
actual public life and try to smear and smirch the solemnity of court proceedings. They must really inspire confidence in Courts and
among the public, failing which such litigation should be axed with a heavy hand and dire consequences.
Learned counsel for the petitioners relies upon the judgment of the Supreme Court reported as AIR 1965 SC 491 (The University of Mysore
and another vs. C.D. Govinda Rao and another) to contend that if appointments are made against the statutory provisions, then a writ of quo
warranto can be issued. The reliance of the learned counsel for the petitioner is on the following part of the judgment, which reads as under:-
(7) As Halsbury has observed*:
An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or
usurped an office, franchise, or liberty, to inquire by what authority he supported his claim, in order that the right to the office or franchise might be
determined."" Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public
office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that
the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words the procedure of quo
warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against
the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen
that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public
office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the
connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly
invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of
quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that
necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not.
We find that the said judgment is not helpful to the arguments raised as the aforesaid was a case where the question was in respect of post of
Research Reader in English. It was a case where the appointment was made against the conditions in the advertisement. The High Court examined
the question that the qualifications prescribed in the advertisement were not satisfied. The Court held that the question as to whether the candidate
has obtained 50% marks is purely an academic matter and the Court would necessarily hesitate to express an opinion when the Boards of experts
was satisfied that the candidate was qualified.
In R.K. Jain vs. Union of India, (1993) 4 SCC 119 the Court held that judicial review is concerned with whether the incumbent possessed
qualifications for the appointment and the manner in which the appointment came to be made. It was also held that judicial determination is
confined to the integrity of the decision-making process in terms of the statutory provisions. The Court held as under:
Judicial review is concerned with whether the incumbent possessed of qualification for appointment and the manner in which the appointment
came to be made or the procedure adopted whether fair, just and reasonable. Exercise of judicial review is to protect the citizen from the abuse of
the power etc. by an appropriate Government or department etc. In our considered view granting the compliance of the above power of
appointment was conferred on the executive and confided to be exercised wisely. When a candidate was found qualified and eligible and was
accordingly appointed by the executive to hold an office as a Member or Vice-President or President of a Tribunal, we cannot sit over the choice
of the selection, but it be left to the executive to select the personnel as per law or procedure in this behalf. In Shri Kumar Padma Prasad vs. Union
of India, (1992) 2 SCC 428 K.N. Shrivastava, M.J.S., Legal Remembrancer, Secretary of Law and Justice, Government of Mizoram did not
possess the requisite qualifications for appointment as a Judge of the High Court prescribed under Article 217 of the Constitution, namely, that he
was not a District Judge for 10 years in State Higher Judicial Service, which is a mandatory requirement for a valid appointment. Therefore, this
Court declared that he was not qualified to be appointed as a Judge of the High Court and quashed his appointment accordingly. The facts therein
are clearly glaring and so the ratio is distinguishable.
In a judgment reported as Centre for PIL and another vs. Union of India and another, (2011) 4 SCC 1, the Supreme Court held thus:-
Even in R.K. Jain case, this Court observed vide para 73 that judicial review is concerned with whether the incumbent possessed
qualifications for the appointment and the manner in which the appointment came to be made or whether the procedure adopted was fair, just and
reasonable. We reiterate that the Government is not accountable to the courts for the choice made but the Government is accountable to the courts
in respect of the lawfulness/legality of its decisions when impugned under the judicial review justification. We do not wish to multiply the authorities
on this point.
In a judgment reported as (2009) 8 SCC 273 (Mahesh Chandra Gupta vs. Union of India and others), the Court held that eligibility to hold a
post is a matter of fact whereas suitability is a matter of opinion. The writ of quo warranto would lie only in the case of lack of eligibility. The
reason is that eligibility is not a matter of subjectivity. The Court held as under:-
""The overarching constitutional justification for judicial review, the vindication of the rule of law, remains constant, but mechanisms for giving
effect to that jurisdiction vary."" Mark Elliott ""Judicial review must ultimately be justified by constitutional principle."" Jowett
In the present case, we are concerned with the mechanism for giving effect to the constitutional justification for judicial review. As stated above,
eligibility"" is a matter of fact whereas ""suitability"" is a matter of opinion. In cases involving lack of ""eligibility"" writ of quo warranto would certainly
lie. One reason being that ""eligibility"" is not a matter of subjectivity. However, ""suitability"" or ""fitness"" of a person to be appointed a High Court
Judge : his character, his integrity, his competence and the like are matters of opinion.
In view of the aforesaid judgments, we find that there is no allegation that candidates promoted under Rule 5(1)(b) of the Rules are not eligible
for being promoted to the Higher Judicial Service. The only allegation is that their promotion is in excess of quota. An appointment in excess of
quota can be said to be merely irregularity as held in Ram Sarup vs. State of Haryana and others, (1979) 1 SCC 168, the relevant part of the
Judgment is as under:-
The question then arises as to what was the effect of breach of Clause (1) of Rule 4 of the Rules. Did it have the effect of rendering the
appointment wholly void so as to be completely ineffective or merely irregular, so that it could be regularised as and when the appellant acquired
the necessary qualifications to hold the post of Labour-cum-Conciliation Officer. We are of the view that the appointment of the appellant was
irregular since he did not possess one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years''
experience of the working of labour laws in any one of the three capacities mentioned in Clause (1) of Rule 4 or in any higher capacity, his
appointment must be regarded as having been regularised. The appellant worked as Labour-cum-Conciliation Officer from January 1, 1968 and
that being a post higher than that of Labour Inspector or Deputy Chief Inspector of Shops or Wage Inspector, the experience gained by him in the
working of Labour Laws in the post of Labour-cum-Conciliation Officer must be regarded as sufficient to constitute fulfillment of the requirement
of five years experience provided in Clause (1) of Rule 4. The appointment of the appellant to the post of Labour-cum-Conciliation Officer,
therefore, became regular from the date when he completed five years after taking into account the period of about ten months during which he
worked as Chief Inspector of Shops. Once his appointment became regular on the expiry of this period of five years on his fulfilling the
requirements for appointment as Labourcum- Conciliation Officer arid becoming eligible for that purpose, he could not thereafter be reverted to
the post of Statistical Officer. The order of reversion passed against the appellant, was therefore, clearly illegal and it must be set aside.
In a judgment reported as (2014) 1 SCC 161 (Central Electricity Supply Utility of Odisha vs. Dhobei Sahoo and others) the Court held as
under:
From the aforesaid exposition of law it is clear as noonday that the jurisdiction of the High Court while issuing a writ of quo warranto is a
limited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the
statutory rules. That apart, the concept of locus standi which is strictly applicable to service jurisprudence for the purpose of canvassing the legality
or correctness of the action should not be allowed to have any entry, for such allowance is likely to exceed the limits of quo warranto which is
impermissible. The basic purpose of a writ of quo warranto is to confer jurisdiction on the constitutional courts to see that a public office is not held
by usurper without any legal authority.
In Statesman (Private) Ltd. vs. H. R. Deb and others, AIR 1968 SC 1495 the Supreme Court held that the High Court in a quo warranto
proceeding should be slow to pronounce upon the matter unless there is a clear infringement of law.
Thus, we find that for breach of quota rule even if it is assumed to be so, it cannot be said that the candidates were not qualified for promotion.
It is, at best, an irregular promotion which will not entitle the petitioners to seek a writ of quo warranto. Still further, in terms of Statesman''s case
the writ of quo warranto cannot be issued, unless there is clear infringement of law. Since there is no challenge to the eligibility, therefore, the
present writ of quo warranto, on the basis of the violation of the quota rule cannot be said to be maintainable. Consequently, the same is dismissed.